City Does Not Have to Prepare Environmental Impact Report (EIR) for Hotel Project that Had Been Adequately Examined in a Previous Program EIR

Issue

A California Court of Appeal, in Citizens for Responsible Equitable Environmental Development v. City of San Diego Redevelopment Agency, 2005 Daily Journal D.A.R. 13,749, Cal.App. 4 Dist., Nov. 30, 2005, considered whether a project-specific environmental impact report (EIR) was required for a hotel project. The Court of Appeal determined an agency does not have to prepare an EIR for a project whose impacts have been sufficiently analyzed in a prior program EIR or master EIR, and the potential impacts of the hotel project had been adequately examined in a previous program EIR and a subsequent EIR.

Facts

In 1992, the City of San Diego Redevelopment Agency, the San Diego Centre City Development Corporation, and the City of San Diego (collectively, “San Diego”) adopted a Master Environmental Impact Report (MEIR). The MEIR, which was classified as a “program” EIR, evaluated the potential environmental impacts that would result throughout the Community Planning Area from certain redevelopment plans in downtown San Diego. In 1999 San Diego adopted a Final Subsequent EIR (SEIR), which supplemented the MEIR regarding development of a baseball stadium.

In 2002, San Diego approved a Final Environmental Secondary Study regarding construction of a hotel in the planning area. The Secondary Study concluded that potential significant environmental impacts of the hotel project had been sufficiently analyzed in the MEIR and SEIR and a new EIR was therefore not required. Citizens for Responsible Equitable Environmental Development (CREED) sued, arguing a project specific EIR was required. The trial court ruled against CREED and it appealed.

Appellate Court Decision

The Court of Appeal determined that Public Resources Code “section 21090 prohibits an agency from requiring further environmental review of redevelopment plans for which a project EIR has been prepared, unless circumstances specified in § 21166 exist.” (The circumstances listed in § 21166 are proposed project changes, substantial changes in circumstances, or new information.) Therefore, “section 21090 does not require an agency to prepare an EIR for a project whose environmental impacts have been sufficiently analyzed in a prior program EIR or master EIR.”

The Court rejected CREED’s argument that an EIR was required because a “fair argument” can be made that the project would have significant environmental impacts. The “fair argument” standard for reviewing an agency’s decision applies to the threshold decision of whether to prepare an EIR. However, the fair argument standard does not apply to an agency’s decision that a project is within the scope of a previous EIR. Courts defer to an agency’s decision not to prepare a supplemental or subsequent EIR.

Lastly, the Court determined that San Diego correctly concluded that the potential environmental effects of the hotel project were adequately examined in the MIER and SEIR. A program EIR, such as the MEIR and SEIR prepared by San Diego, “may serve as the EIR for a subsequently proposed project to the extent it contemplates and adequately analyzes the potential environmental impacts of a project.” Here, the MEIR and SEIR had sufficiently examined the potential environmental effects of a hotel project: the community plan contemplated construction of hotels in the area; the MIER assessment included the ultimate build-out for a 35-year period; it forecast construction of 5,880 additional hotel rooms; and the MEIR contemplated it would be used for project specific approvals of future development within the planning area. Also, the Secondary Study acknowledged significant environmental impacts from the hotel project, but concluded the impacts would not be greater than those identified in the MEIR and SEIR.

Thus, the Court affirmed the trial court decision.